Guest Post: Rethinking “Manifest Arbitrariness” in Article 14: Part II – Disparate Impact and Indirect Discrimination

[This essay, a Guest Post by Dhruva Gandhi, is the second in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation. The first part of the series is available here.]


Previously, along with Sahil Raveen (here and here) I have critiqued the use of manifest arbitrariness by Nariman J. in Hindustan Construction and Essar, stating how the use of the doctrine meant that the Supreme Court effectively usurped the mandate of Parliament and showing how the decision-making of the court itself was arbitrary. Commenting on the same doctrine, Naniwadekar seems to suggest that the scope of the doctrine should be confined to administrative law and we adopt a deeper understanding of the classification test. The doctrine ought not to be used to strike down statutes. However, the point remains that the doctrine of manifest arbitrariness is now a part of positive law and can be used to strike down statutes as well. Therefore, it is imperative that we find a way to make the doctrine workable that does not see the Supreme Court make policy decisions. With that objective, I look at Navtej Johar and show how the adoption of the doctrine of manifest arbitrariness by the Constitution Bench was actually an application of the concept of disparate impact or indirect discrimination. While I am not saying that ‘manifest arbitrariness’ must be equated with ‘disparate impact’, it could help us provide some meaning to the doctrine and limit its scope.

The Concept of Indirect Discrimination

‘Indirect Discrimination’ or ‘Disparate Impact’ has been adopted in different forms in various jurisdictions the world over. In the United States, the concept of indirect discrimination was initially spelled out in Griggs v Duke Power Co. as:

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. (emphasis supplied)

Cutting across the Atlantic, several decades later the Equality Act, 2010 in the United Kingdom defined indirect discrimination as,

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Definitions such as these can be multiplied and there do appear to be certain nuances that differentiate them. For the moment, I do not wish to delve into those. A common understanding of these definitions seems to be that when a facially neutral measure has or may have a disproportionately adverse impact on persons who belong to certain protected/vulnerable groups, the measure would be indirectly discriminatory or disparate in its impact.

History of Disparate Impact in India

While there has not been much of a discussion of indirect discrimination in India, there have been a few instances when this concept has been applied. For instance, when examining the constitutional validity of a section in the Hindu Marriage Act, 1955 that provided for a decree of restitution of conjugal rights, the Andhra Pradesh High Court said that such a section irretrievably alters the life of a wife while not having any such impact on the husband. It is the wife who has to beget a child and the practical consequences of such a decree would cripple her future plans. More recently, the Delhi High Court examined the validity of a practice in the Northern Railways where medical insurance was denied to those family members of an employee whose names had been struck off by that employee. The court said that even a facially neutral decision can have a disproportionate impact on a constitutionally protected class. In this case, the disproportionate impact was on women and children. Barring these and a few other instances though, there has been no explicit recognition of ‘disparate impact’ in India by the Supreme Court. Bhatia argues that Anuj Garg v Hotel Association of India could be a precedent to say that the effect of a measure must be observed to see its discriminatory nature, but as he himself concedes this case involved a directly discriminatory provision.

‘Manifest Arbitrariness’: A Finding of Disparate Impact.

With this background of indirect discrimination and its application in India, I now wish to turn to the case which adopted the doctrine of manifest arbitrariness as a doctrine that can be used to strike down a statute- Navtej Johar v Union of India. While it was first discussed by Nariman J. in Sharaya Bano v Union of India, there appears to be a lack of clarity on whether his opinion on that point was supported by a majority. Instead, writing previously on this blog, Abhinav Chandrachud has shown how the judges in Navtej adopted this doctrine as a tool that can be used to invalidate statutes.

The provision in contention in Navtej– Section 377 of the Indian Penal Code, 1860 was a facially neutral provision. It did not directly discriminate on the basis of sexual orientation. Instead, it potentially covered within its ambit, consensual and non-consensual homosexual intercourse, consensual and non-consensual heterosexual intercourse other than penal-vaginal intercourse and sexual intercourse with animals. Therefore, Section 377 was discriminatory in its operation. It had a disproportionate adverse impact on a vulnerable group- consenting homosexual adults. It is in this context that the four opinions in this case need to be studied.

The Opinion of Misra J: Parallels with Ladele

Misra C.J. (speaking for himself and Khanwilkar J.) said,

237. Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even ‘consensual acts’, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owing to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meter out to the LGBT community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Constitution…

.. 239. In view of the law laid down in Shayara Bano (supra) and given the fact that Section 377 criminalises even consensual sexual acts between adults, it fails to make a distinction between consensual and non-consensual sexual acts between competent adults. Further, Section 377 IPC fails to take into account that consensual sexual acts between adults in private spaces are neither harmful nor contagious to the society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction. Needless to say, the Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. This being the case, Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.

The opinion of Misra CJ. on the point of manifest arbitrariness was not merely an instance of the court commenting on the policy decision of the legislature and disagreeing with it. Instead, the opinion first notes how the effect of the provision is important because it covers consensual sexual activity. Second, this effect was on a vulnerable group of individuals who shared a common immutable characteristic. Third, this effect had a disproportionately adverse impact- it subjected homosexual individuals to social stigma and even interfered with their privacy. Lastly, the opinion shows how the discriminatory effect came to be- by treating alike those who ought to have been differently. Therefore, it is the disparate impact (see the words, ‘this being the case’) of a neutral measure that made it manifestly arbitrary.

Misra J.’s reasoning is similar to that of English Court of Appeal in Ladele v Islington BC. Ladele, the applicant in that case was a marriage registrar employed by the Islington Borough Council who refused to perform civil partnership proceedings because she believed they were contrary to the will of God. She was then subjected to disciplinary proceedings where she pleaded indirect discrimination on the grounds of religion. While the proceedings were held to be justified, the claim of indirect discrimination was accepted in the following terms,

There is no doubt but that Islington’s policy decisions to designate all the registrars civil partnership registrars, and then to require all registrars to perform civil partnerships, put a person such as Ms Ladel, who believed that civil partnerships were contrary to the will of God, ‘at a particular disadvantage when compared to other persons’, namely those who did not have that belief.

Therefore, it was the failure to distinguish between civil registrars who had a religious belief and those who did not that lead to indirect discrimination as per Neuberger LJ, much like Misra J.

Opinion of Chandrachud J.: Parallels with Mandla v Lee

Similarly, consider the opinion of Chandrachud J.,

Section 377 is based upon a moral notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature….It would have human beings accept a way of life in which sexual conduct without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large….

Even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification given that the penal consequences that follow. Section 377 becomes a blanket offence that covers supposedly all types of non-procreative ‘natural’ sexual activity without any consideration given to the notions of consent and harm.

In Chandrachud J.s’ opinion too, it is the ‘discriminatory effect’ of Section 377 that is tied to a finding of manifest arbitrariness. The words ‘section of our citizens’ in this paragraph are important. When seen in light of the definition that the Equality Act, 2010 in the United Kingdom offers for instance, they show how persons sharing a protected characteristic- ‘homosexuality’ as their sexual orientation- are disadvantaged as compared to those who do not. Chandrachud J.’s reasoning is also similar to the approach adopted by the Andhra Pradesh High Court where the effect on women was observed.

A parallel instance in the United Kingdom furthers this point. In Mandla v Lee, the House of Lords held that a school had unlawfully discriminated against a Sikh student by excluding him from school when he refused to take off his turban. The school had a rule which required boys to come bare-headed to school. While the rule was apparently neutral and applied equally to all students, it was recognised as wanting conformity to a Christian way of dressing and thus, creating barriers for other religions. Chandrachud J. similarly culls out the barriers created to homosexual intercourse by necessitating conformity to a notion that finds the sole purpose of intercourse in procreation.

Even the concluding portions of paragraph extracted above might take a different colour in this light. A differentiating factor between direct and indirect discrimination in the United Kingdom, for one, is that indirect discrimination can be justified whereas direct discrimination cannot. Even in the United States, a measure with a disparate impact is proscribed under Title VII unless it is shown to have some business necessity. Similarly, Chandrachud J.’s opinion says that a provision cannot have a discriminatory impact unless there is a ‘sufficient justification’.

Admittedly, there is an alternate broader interpretation that can be conferred upon this opinion. It can be read to mean that the Supreme Court can sit in review over the merits of criminalisation and de-criminalise a measure unless sufficient justification comes forth. This broader interpretation though, strikes at the separation of powers between the judiciary and the legislature. Analysing the concluding portion of the excerpt in light of an understanding of disparate impact offers a narrower interpretation that is in conformity with the separation of powers. This interpretation is also buttressed by the fact that Chandrachud J. himself finds Section 377 to be an instance of indirect discrimination under Article 15 as well. It may seem odd that he finds the same statute to be an instance of indirect discrimination under Article 15, but I will comment on that a little later.

Malhotra J: Some semblance of Disparate Impact

Moving then to the opinion of Malhotra J.:

Section 377 insofar as it criminalises consensual sexual acts between adults in privates, is not based on any sound or rational principle, since the basis of criminalisation is the ‘sexual orientation’ of a person, over which one has ‘little or no choice’.

Further, the phrase ‘carnal intercourse against the order of nature’ in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.

Thus, apart from not satisfying the twin-test under Article 14, Section 377 is also manifestly arbitrary, and hence, violative of Article 14 of the Constitution.

At the outset, this opinion does not seem to link manifest arbitrariness with disparate impact as neatly as the opinions of Misra CJ. and Chandrachud J. did. However, Malhotra J. has identified that in its operation, Section 377 impacts a vulnerable group defined by an immutable personal characteristic and that this impact is adverse in nature (criminalisation of consensual sexual activity and harassment caused by misuse of criminal law). Therefore, this opinion too looks at the discriminatory operation of an otherwise neutral measure and this discriminatory operation is one reason for the provision to be manifestly arbitrary. To this extent, it shares a common denominator with the opinions of Misra CJ. and Chandrachud J. The second reason, namely, the absence of a sound and rational principle is not in common with those opinions.  However, the material fact is that four out of the five judges found Section 377 to be manifestly arbitrary because it had a disparate impact.

Nariman J. found the provision to be manifestly arbitrary because it was based on a capricious and irrational principle, namely, the fact that gay persons suffer from a mental disorder and ought to be penalised. To this extent, in my opinion, Nariman J. would be in the minority.

According to me, this reading of Navtej Johar seems to suggest that a statute is manifestly arbitrary when it has a disparate impact. Reading it in this way would have some direct, tangible benefits. First, it would militate against what Timothy Endicott terms arbitrary decision making by judges citing the doctrine of arbitrariness and to that extent, preserves the rule of law. Second, it might sanction the incorporation of the concept of disparate impact or indirect discrimination in India. While some have argued that Navtej was a precedent for indirect discrimination even otherwise (here and here), I disagree with these opinions. These opinions seem to rely on the observations made by Chandrachud J. in the context of Article 15(1). However, this was only the opinion of one judge and not the ratio. Therefore, there is some merit to unearthing the use of manifest arbitrariness.

Controversy

Nevertheless, this understanding of ‘manifest arbitrariness’ in Navtej unpacks a set of issues as well. The first is that the application of ‘manifest arbitrariness’ in Navtej is not in sync with its application in Joseph Shine, another Constitution Bench decision. This criticism is fairly true, but one could say that the different opinions in Joseph Shine only applied the test laid down by Nariman J in Sharaya Bano. None of them tried to find a common minimum denominator to Navtej’s application of manifest arbitrariness, the first decision which technically incorporated this doctrine.

A second objection could be that the judges in Navtej applied or at least cited the test quoted by Nariman J. in Sharaya Bano and that disparate impact does not appear to be the sequitur of that opinion. Nariman J., in Sharaya Bano collapsed legislation and delegated legislation for the purposes of Article 14 and said that the doctrine of manifest arbitrariness would apply to both. After that, he said:

Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

In fact, even the Delhi High Court in Harsh Mander v Union of India did something similar. Delivered a month before Navtej and dealing with the constitutionality of the Bombay Prevention of Begging Act, 1949, the court applied manifest arbitrariness in the following manner:

It is our view that law does not make any distinction between types of begging i.e. voluntary or involuntary as has been urged by the petitioners. The absence of any such distinction exposes the statute to a judicial evaluation on the ground of being arbitrary.

On the contrary, the comprehensiveness of the definition of begging in Section 2(1) (i), appears to indicate a legislative intent to cover a broad area, including in its sweep, all types of begging. It has also been pointed out that the respondents are using homelessness and begging synonymously and are in fact detaining the homeless as if they were begging and implementing the penal provision of the act qua them.

This in our view is manifestly arbitrary.

… As a result of the detention of the bread earner of the family, the entire family may be reduced to financial deprivation and penury. Such can never be the object, spirit and intendment of a welfare state by way of what is touted as a social benefit legislation.

The first reason to find the law arbitrary was in response to a contention of the petitioner within the classification framework. It is the second reason that is more interesting. The petitioners contended that 74% of those arrested belonged to the informal labour sector and 45% of those arrested were homeless. It is in response to this contention that the court says that the State was treating homelessness and begging synonymously. What the court thus found was a disproportionate impact on a vulnerable group- the homeless. The disadvantage caused to them was that they were detained and even exposed to criminal sanction. Not to mention, their families were pushed into penury as a consequence. Therefore, the finding of manifest arbitrariness was contingent on a finding of disproportionate impact.

The disproportionate impact becomes clearer when we compare this to DH v Czech Republic, heard by the ECtHR, where a claim of indirect discrimination was upheld. This was a case where ‘psychology tests’ were administered to determine whether or not children should go to special schools, which were in practice undemanding and inferior. Statistics showed that these tests had a disproportionate impact on Roma students, who were over-represented in special schools. Similarly, before the Delhi High Court it was the homeless who were over-represented before the Beggars Court.

The third and more structural objection to this placement of ‘indirect discrimination’ in Navtej is that the court applies manifest arbitrariness in the context of Article 14. Chandrachud J. even says that discrimination under Article 15 could be indirect. This raises interesting questions about the nexus between Articles 14 and 15. Does Article 15(1) only cover direct discrimination? Would all cases of disparate impact only be covered by Article 14? Is one way to reconcile Chandrachud J.’s opinion that Article 14 covers indirect discrimination for markers other than the grounds covered by Article 15? However, what then is so unique about direct discrimination? Is it harm? Is it intention? Similarly, if we are to say that Article 15 covers direct and indirect discrimination for the grounds and Article 14 covers indirect discrimination for other grounds, what is the significance of Article 15(1)? Why do we even have grounds?

While I cannot deal with all these questions at present and may do so at a subsequent stage, my point remains that this reading of Navtej and Harsh Mander might help us add substance to the doctrine of ‘manifest arbitrariness’.

The Citizenship (Amendment) Act Challenge: Three Ideas

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.


[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

Guest Post: The Wrath of CAAn – on Citizenship, Secularism, and Equality

[This is a guest post by Abhinav Chandrachud.]


In a paper posted on SSRN, I outline what I consider to be the key arguments for and against the Citizenship (Amendment) Act, 2019 (“CAA”).

Hidden Constitutional Premises:

To begin with, the paper interrogates the premise that the CAA violates the secular fabric of India’s Constitution and argues that there were certain hidden premises in the citizenship provisions of the Constitution that were not very secular at all. Two waves of immigration from West Pakistan to India occurred after 1 March 1947. In the first wave, Hindus and Sikhs came here in large numbers. In the second wave, Muslims who had left India for Pakistan tried to come back home. This created problems in India – the homes of Muslim “evacuees” were being used to rehabilitate Hindu and Sikh “displaced persons”. In July 1948, therefore, a permit system was introduced which made it very difficult for Muslim “evacuees” to return to India if they had property back home. Articles 6-7 of the Constitution indirectly entrenched this preference for Hindu/Sikh “displaced persons” and discriminated against Muslim “evacuees” who wanted to come back home. They did so by making it far easier for those who had come to India prior to 19 July 1948 (i.e., the date of the introduction of the permit system), presumed to be mostly Hindus and Sikhs, to become Indian citizens, while denying Muslim “evacuees” citizenship unless they had obtained an elusive permit for resettlement.

The CAA Is Discriminatory:

That does not mean, however, that the CAA is constitutionally valid. The conditions which existed between 1947-50 (viz., housing shortages, a mass exodus of people, a charged communal environment caused by an influx of refugees) no longer exist today. A persuasive argument can be made that the CAA is discriminatory for five reasons: (i) it leaves out other religious communities in the subject countries (e.g., Jews, atheists, agnostics, Shias, Ahmadiyas); (ii) it ignores other countries in India’s neighborhood (e.g., Sri Lanka, Bhutan, Myanmar); (iii) the cut-off date of 31 December 2014 is arbitrary (though bright line rules tend to be arbitrary, the CAA’s bright line rule undermines its own ostensibly humanitarian objective of protecting those who suffer religious persecution); (iv) it ignores non-religious persecution (e.g., persecution on grounds of race or sexual orientation); (v) the relaxation of the residence requirement from 11 years to 5 years is palpably arbitrary (why should a Parsi fleeing religious persecution from Iran have to reside in India for 11 years to seek citizenship by naturalization, while a Parsi fleeing religious persecution from Afghanistan has to wait only 5 years?)

Underinclusion, or the Chief Justice Patanjali Sastri Defence

However, proponents of the CAA might argue that Article 14 of the Constitution has its limits. In an early case, Chief Justice Patanjali Sastri held that classification brought about by the legislature need not be “scientifically perfect or logically complete”. Building on this doctrine, the Supreme Court has, over the years, held that a pragmatic (not doctrinaire) approach will be adopted in classification cases. The court will frown upon an overinclusive statute but not an underinclusive one (unless there is no fair reason to exclude those left out). The CAA is underinclusive. The state may argue that the categories it excludes are based on degrees of harm and that classification need not be scientifically perfect.

However, this argument is not very persuasive. The classification under the CAA must be tested in the light of the ostensible purpose of the statute. The aim of the statute, according to the Statement of Objects and Reasons, is to protect communities which “faced persecution on grounds of religion” in the subject countries. If that is so, the exclusion of the four categories mentioned above (i.e., other religious minorities in the subject countries; religious minorities in other countries; those who suffer religious persecution after the cut-off date; those who suffer non-religious persecution) lacks an “adequate determining principle” altogether, and therefore is not a simple case of “under-inclusion”; rather, it might fall foul of the “manifest arbitrariness” test.

The CAA is only part of the problem:

However, the CAA is only a part of the problem with Indian citizenship law. Amending the CAA to undo its shortcomings will still not save genuine Indian citizens from being disenfranchised under a National Register of Citizens (NRC). Some 19 lakh people in Assam have been left out of the NRC. Non-Muslims who are excluded from the NRC will only be able to seek refuge under the CAA if they can prove that they came to India before 31 December 2014 from one of the subject countries fleeing (or fearing) religious persecution, which may not be as easy as one might think (despite the “sympathy” provision in Section 8 of the Foreigners Act, 1946).

The paper identifies four problems with Indian citizenship laws: (i) the reverse burden of proof; (ii) the abandonment of citizenship by birth; (iii) the failure to grant a safe harbor to “dreamers”; and (iv) the procedural defects in the Foreigners Tribunals.

The burden of proof in citizenship cases is on the alleged foreigner. Relying on similar laws in countries like the U.S., the Supreme Court of India has upheld this evidentiary rule in Sonowal I, without realizing that the socio-economic condition of the citizens of countries like the U.S. is very different from that in India. An Indian citizen may not, on account of illiteracy, poverty or inadequate infrastructure, be able to prove his citizenship like an American citizen would.

After the 2004 amendment to the Citizenship Act, 1955, the principle of citizenship by birth in India has been abandoned. Now, anyone born in India after 1987 has to prove either than one or both parents are Indian citizens (in some cases, that one parent is not an illegal immigrant). Proving the place of birth of one’s parents is hard for anybody. However, this is especially harsh on some like orphans and transgender persons. How will orphans, who never knew their parents, be able to prove that their parents were Indian citizens? How will transgender persons (some of whom are abandoned at birth) be able to do so?

Indian citizenship law operates harshly on “dreamers” (the term “dreamer” is used in the U.S. to describe the child of an illegal immigrant who arrived illegally in the U.S. at a very young age). A child born in India to illegal immigrants has only known India to be his/her homeland since childhood. That child may now be an adult. Even so, is it not unfair to now deport that person to a country he/she has never known? Similarly, a child who accompanied his/her illegal immigrant parents to India has also known only India to be his/her homeland since childhood and the illegal immigration to India was not his/her fault. Why should such persons, even if they are now adults, be deported overseas?

The judges of Foreigners Tribunals lack security of tenure, without which there cannot be an independent judiciary. They hold office not during “good behaviour” (e.g., for a fixed, non-renewable term in office, or until a retirement age), but for short, renewable terms. Further, though “members” of the tribunal are supposed to have judicial experience, even retired civil servants have recently been accepted as members of these tribunals, contrary to the principles laid down by the Supreme Court. The fact that there are no statutory appeals against these tribunals accentuates these problems. Though a writ remedy is available against their “opinions”, High Courts will not enter into complicated questions of fact while entertaining writs.

Guest Post: The Constitutionality of the Citizenship (Amendment) Act – A Rejoinder

(This is a guest post by Varun Kannan.)


I have had the benefit of reading two illuminating pieces written on this blog by Nivedhitha K and Shivam Singhania, on the constitutionality of the Citizenship (Amendment) Act, 2019 (‘CAA’). While Nivedhitha and Shivam arrived at different conclusions with respect to the constitutionality of the CAA, they also expressed different opinions on whether Indu Malhotra J’s concurring opinion in Navtej Johar made an interpretative advance to the traditional classification-based test under Article 14, and whether a religion-based classification is permissible.

In this post, I aim to argue that Section 2 of the CAA fails to satisfy even the traditional classification test of Article 14, and that it can be struck down without any need to resort to the Navtej Johar decision, or the test of ‘manifest arbitrariness’. Another aspect of Section 2 of the CAA which has not received sufficient attention is the cut-off date of 31st December 2014. I shall also argue that prescription of this cut-off date in the statute is violative of Article 14.

The change in eligibility criteria that has been brought about by the CAA

Before proceeding with the analysis, let us reproduce the exact wording of Section 2 of the CAA, which seeks to amend Section 2(1)(b) of the Citizenship Act, 1955 (‘the parent Act’) by inserting the following proviso:

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

 

The proviso inserted makes three distinct classifications: (i) a religion-based classification i.e. the person must belong to either of the six communities referred to above, and must also be a victim of religious persecution; (ii) a country-based classification i.e the person should be from Afghanistan, Pakistan or Bangladesh, and should have suffered from religious persecution in either of these three counties ; and (iii) a classification based on the cut-off date i.e. whether the illegal immigrant has entered India on or before 31st December 2014. It is important to note here that the requirement of ‘religious persecution’ has not been mentioned anywhere in the text of the CAA. This requirement has been mentioned only in the Statement of Objects and Reasons of the CAA, and in certain notifications issued by the Ministry of Home Affairs in 2015 and 2016 – that the CAA refers back to – which have exempted the same category of illegal immigrants from the penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. (The relevant 2015 notifications can be found here and here).

It is also instructive to refer to Section 3 and Section 5 of the CAA. Section 3 inserts Section 6B to the parent Act, and inter alia states that upon fulfilment of additional conditions that may be prescribed, individuals referred to in the newly inserted proviso shall be eligible to receive a certificate of naturalisation or registration. Section 5 amends the Third Schedule of the Parent Act to reduce the naturalization requirement from 11 years to 5 years, for individuals who fulfill the criteria prescribed by Section 2. This highlights that the CAA does not automatically grant citizenship to certain communities, and that it only changes the eligibility criteria for obtaining Indian citizenship for individuals from certain religious communities who have come to India from three neighboring countries. This change in the eligibility criteria which makes three distinct classifications referred to above forms the basis on which we shall analyze whether Section 2 of the CAA satisfies the traditional classification-based test of Article 14.

Does Section 2 of the CAA satisfy the traditional classification-based test under Article 14?

Under the traditional classification-based test of Article 14, as laid down in decisions such as Anwar Ali Sarkar a classification created through legislation must satisfy a two-pronged test – (i) it should be founded on an intelligible differentia, which distinguishes those that are grouped together from those that have been excluded; and (ii) the differentia must have a rational nexus with the object that the statute seeks to achieve. In Anwar Ali Sarkar, it was also held that the application of Article 14 cannot be precluded on the basis of whether there was clear evidence of the Legislature’s intention to discriminate, and held that the application of Article 14 is premised on whether discrimination is a necessary consequence of the statute.

The validity of the religion and country-based classification

Keeping this in mind, let us jointly analyze the religion-based and country-based classification created by Section 2 of the CAA. Section 2 changes the eligibility criteria for obtaining citizenship only for six communities (Hindu, Sikh, Buddhist, Jain, Parsi or Christian) who have come to India as illegal immigrants from Afghanistan, Pakistan or Bangladesh, and have been victims of religious persecution. The Statement of Objects and Reasons of the CAA, as mentioned in the Citizenship (Amendment) Bill, 2019 (‘CAB’) inter alia states that – “The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted”.

However, Pakistan, Afghanistan and Bangladesh are not the only neighboring countries that have a specific state religion. There are two other neighboring countries i.e. Bhutan and Sri Lanka, which also have a specific state religion, which is Buddhism. There exists clear evidence that Tamils (who also subscribe to the Hindu faith) from Sri Lanka and Christians from Bhutan have been subjected to religious persecution. In fact, as Arun Janardhanan points out in the Indian Express, around 1 lakh Tamils from Sri Lanka who had fled from the State due to anti-Tamil riots continue to live in India as of today. Section 2 of the CAA fails to include such other persecuted communities.

In fact, while Hindus and Christians from Pakistan, Bangladesh and Afghanistan have been included, the Hindu Tamils from Sri Lanka and Christians from Bhutan have been excluded from the ambit of Section 2. Additionally, Section 2 of the CAA also does not include the Ahmadi community of Pakistan, who constitute a sect of Muslims who have been severely persecuted in Pakistan. The exclusion of three communities mentioned above shows that discrimination in terms of eligibility criteria for citizenship is a necessary consequence of Section 2 of the CAA.

Taking into account these exclusions, the Union Government may refer to the Statement of Objects and Reasons to contend that the classification is applicable only to those countries that have Islam as the specific state religion, and that the communities covered are only those communities in these three countries who do not believe in Islam. This may also be used to justify the exclusion of Ahmadi Muslims, to state that they are persecuted on sectarian grounds, as they do not subscribe to a certain version of Islam in Pakistan. However, such a classification is not based on an ‘intelligible’ differentia for three reasons, which shall be outlined below.

First, the classification is based on the premise that religious persecution takes place only in those neighboring countries that have Islam as the specific state religion. But, as discussed above, religious persecution also takes place in Sri Lanka and Bhutan, which have Buddhism as the State religion, and not Islam. The case of Tamils in Sri Lanka and Christians in Bhutan highlights that persecution takes place even in two other neighboring countries that do not subscribe to Islam.

Second, the classification is based on the presumption that only communities who are non-believers in the state religion are persecuted, and that only minority communities are persecuted in an Islamic country.  The persecution of Ahmadi Muslims in Pakistan for not subscribing to a certain version of Islam rebuts this presumption. As Ahmadis are persecuted for not subscribing to a certain version of Islam, their persecution does have a ‘religious’ angle to it. This renders the distinction between ‘religious’ and ‘sectarian’ persecution a matter of mere semantics, which cannot be used to argue that the classification is based on an intelligible differentia. In any case, the distinction between religious and sectarian persecution is applicable only to Ahmadis, and is inapplicable to the exclusion of Sri Lankan Tamils and Bhutanese Christians.

Third, the religion and country-based classification takes into account only religion-based persecution, and does not take into account certain other forms of persecutions, such as persecution that is political in nature. For instance, Tibetans are persecuted in China for political reasons, and even they stand excluded from the protective umbrella of the CAA. For these reasons, the religion and country-based classification is not just and sound, and cannot be said to be based on an ‘intelligible’ differentia.

Furthermore, instead of viewing this classification as a case of ‘under-inclusion’ by the Legislature, it is better understood as one that leads to discrimination as a necessary consequence. This is a case of unequal treatment of individual human beings within the territory of India, who are placed in a similar situation, and is not akin to other classic cases of ‘under-inclusion’ such as Chiranjit Lal Choudhary, where in a government take-over case, it was argued that other similarly placed companies were ‘under-included’ by the Legislature. The CAA accordingly leads to discrimination as a ‘necessary consequence’, as certain communities already in India as “illegal immigrants” from three neighboring countries are granted a different eligibility criteria for citizenship, to the exclusion of others (such as Sri Lankan Tamils) who are similarly placed. This also goes against the basic tenet of Article 14, which is that ‘equals should be treated equally’.

As the classification is not based on an intelligible differentia, it fails to satisfy the classification test of Article 14. However, for the sake of argument, let us assume that the Supreme Court finds an intelligible differentia, and analyze whether the second prong of the test is satisfied i.e. whether the differentia has a rational nexus with the purpose that the statute seeks to achieve. In decisions such as Subramanian Swamy v. CBI, the Supreme Court has added another prong to the rational nexus requirement, by holding that the purpose that the statute seeks to achieve should itself be legitimate. It was also held (in the context of Section 6-A of the Delhi Police Special Powers Act) that if the object of the statute is itself discriminatory, then that discrimination cannot be justified on the ground that there is a rational nexus with the object that the statute seeks to achieve.

As discussed above, the Union Government may present the object of Section 2 of the CAA narrowly, by contending that it seeks to provide benefit to persons belonging to non-Islamic communities, in the three neighboring countries that have Islam as the state religion. The Union Government may contend that the CAA changes the eligibility criteria for only those communities who have been victims of religious persecution, for belonging to a community that does not believe in the state religion i.e. Islam. While a rational nexus may be established with this object, I would submit that for the same reasons discussed above, the object of Section 2 of the CAA is in itself discriminatory. The reasons mentioned above can be summarized as follows:

i.         The religious persecution of Sri Lankan Tamils and Bhutanese Christians shows that religious persecution exists even in those countries that have a state religion apart from Islam, and that religious persecution is not limited solely to Islamic nations;

ii.         The persecution of Ahmadi Muslims in Pakistan highlights that even communities that subscribe to the state religion can be persecuted. As Ahmadi Muslims are persecuted for not subscribing to a certain version of Islam, their persecution also has a ‘religious’ angle, and cannot be categorized as persecution that is merely ‘sectarian’ in nature;

iii.         Persecution of communities is not restricted solely to religious grounds, as evidenced through the persecution of Tibetans in China, which is done on political grounds. The object of the statute hence includes one form of persecution to the exclusion of other forms of persecution which are equally significant.

All communities mentioned above have been excluded from the ambit of the CAA. Hence, the object of the religion and country-based classification created by Section 2 of the CAA is in itself discriminatory. Applying the test laid down in Subramanian Swamy, such discrimination cannot be justified on the ground that it has a rational nexus with the object that the statute seeks to achieve.

We may also make reference here to the Supreme Court decision in Deepak Sibal v. Punjab University. Here, it was held (in context of admission to educational institutions) that while the Legislature is entitled to prescribe the source from which admission to an educational institution is to be made, such a source (which selects the beneficiaries of the legislation) is also a ‘classification’. As it is a ‘classification’, it must also satisfy the traditional Article 14 test. This decision can also be applied to the classifications created by the CAA. The Union Government cannot successfully argue that the requirements of Article 14 are satisfied by defining the purpose of the CAA in terms of the selection of the beneficiaries i.e. in terms of illegal immigrants of non-Islamic communities, who have come to India from three neighboring Islamic nations. To illustrate further, a law which confers red-haired businessmen with a tax exemption cannot be defended on the ground that the object of the law is in itself to provide a benefit to solely red-haired individuals, as such an object would by itself be discriminatory.

For the reasons mentioned above, the religion and country-based classifications fail to satisfy either of the requirements of the traditional classification test.

The validity of the cut-off date-based classification

Section 2 of the CAA also prescribes that in order to take benefit of the amendment, the illegal immigrant should have entered into on or before 31st December 2014, which is the cut-off date. This creates a third tier of classification, between illegal immigrants (who belong to either of the six communities and have come to India from Pakistan, Afghanistan and Bangladesh) who have entered India before 31st December 2014, and those who have entered India after the cut-off date. This cut-off date was not present in the 2016 version of the CAB, and was inserted only in the 2019 version of the Bill, which is now the CAA.

As Arunabh Saikia argues, this cut-off date may have been put in place to assuage concerns of groups from the North-east regions, who expressed an apprehension that the absence of a cut-off date could lead to an endless influx of immigrants. The Union Government may also justify the cut-off date by contending that the CAA is a logical continuation of the 2015 and 2016 notifications referred to above, which exempted the same category of illegal immigrants referred to in the CAA from the penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. (For ready reference, the relevant 2015 notifications are available here and here). These notifications also prescribed the same cut-off date of 31st December 2014.

This however cannot be a ground to show either an intelligible differentia or a rational nexus, as the Notifications can easily be amended through an executive order and brought in conformity with the date of coming into force of the CAA. Furthermore, there can be no intelligible distinction based on whether the same category of illegal immigrants entered India before or after 31st December 2014. Such a distinction is not just and sound, as there exists no parameter to justify the exclusion of the same category of illegal immigrants, solely on the ground that they entered India after the end of a particular date.

If a person has entered India after being a victim of religious persecution, he should technically be eligible for protection irrespective of the date on which he entered India. If the CAA would have prescribed that illegal immigrants who entered India on or before the date of commencement of the CAA would fall within its protective umbrella, then such a cut-off date would have some nexus with the goal of preventing a large scale influx of illegal immigrants. But, creating a classification through a cut-off date that is almost five years prior to the commencement of the CAA is not founded on any intelligible differentia. Such a differentia also does not have any rational nexus with the purported objective of providing protection to communities who have suffered from persecution in Islamic nations.

Conclusion

For the reasons mentioned above, all three classifications created by Section 2 of the CAA fail to satisfy the traditional test of Article 14. Hence, even without resorting to the subjective and more controversial test of ‘manifest arbitrariness’ or the Navtej Johar decision, Section 2 of the CAA, can be declared as unconstitutional.

The Constitutionality of the Citizenship (Amendment) Act: A Response

[This is a guest post by Shivam Singhania. The piece was written before the passage of the Bill into an Act, and the constitutional challenge to the Act. References to the “Bill”, therefore, may be understood as references to the Act.]


This piece is in response to the piece on this blog titled “The Citizenship (Amendment) Bill is Unconstitutional”. Respectfully disagreeing with the author, I shall endeavour to address the arguments against its constitutionality, and also chart out a path within the bounds of the settled judicial precedent on Article 14.

The bill changes amends the Citizenship Act on two counts – by inserting a proviso in Section 2(1)(b), and by amending clause (d) of the Third Schedule. The first count, i.e., the proviso, provides that ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ will not be treated as an illegal immigrant under the Act, subject to three conditions: (a) he/she entered India on or before December 31, 2014, (b) is exempted by the Central Government under Section 3(2)(b) of the Passport (Entry into India) Act, 1920, (c) is exempted from the application of Foreigners Act, 1946.

(Note: The Passport Act empowers the Central Government to make rules requiring persons entering India to possess passports. It also gives the Central Government power to exempt, conditionally or unconditionally, any person or class of persons from complying with such requirements. The Foreigners Act empowers the Central Government to make orders prohibiting, regulating, restricting entry of non-citizens, i.e., foreigners into India. The Central Government also has the power to exempt any individual or class or description of foreigner from the application of the act. The exemptions for Bangladeshi and Pakistani nationals were issued in 2015, and included Afghanistan nationals in 2016. These exemptions have not been challenged. Further, the same classification exists for the purpose of issuing Long Term Visas (LTV) to nationals of these three countries. The same has also not been challenged.)

The second count, i.e., amendment to the Third Schedule, relaxes the time-criteria for naturalization from at least 11 out of 14 years to at least 5 out of 14 years of residing in India, or being in service of the Government, for ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’.

Admittedly, the constitutional questions rest on the issue of discrimination and non-adherence to ‘equal protection of law’.

CLASSIFICAITON UNDER ARTICLE 14

The Constitutional position, right from Anwar Ali Sarkar to a catena of subsequent cases, is clear that the equality principle envisages like to be treated alike, and consequently allows unlike to be treated differently. Such differentiation, however, has to stand the test of intelligible differentia, i.e. that the basis or principle guiding the creation of different groups meant to be treated differently by the law should be ascertainable and sound. Further, such differentia should have a rational nexus to the object of the law, meaning that t should directly further the purpose that the law seeks to fulfil. Subsequently, the test of arbitrariness was also added in E.P. Royappa.

The classification in this amendment, as rightly described by the author, is on two counts: first – religion of the target group, i.e., Hindus, Sikhs, Buddhists, Jains, Parsis and Christians; and second – country of origin of these groups, i.e., Pakistan, Bangladesh and Afghanistan.

It will be shown in the course of this essay that the principles that ground the above classifications are intelligible and not under-inclusive and serve the object of the amendment and overall, are not arbitrary.

RELIGION, ARTICLE 14 AND ARTICLE 15

Over and above the generality of equality principle laid out in Article 14, Article 15 provides for prohibition of discrimination on specific grounds, such as race, sex, and also religion. This means that any such basis of classification, even if intelligible, cannot pass muster of Article 14 for reason of the specific prohibition in Article 15.

However, Article 15 applies only to citizens. On the other hand Article 14 applies to ‘any person’. Thus, as settled in Chandrima Das and Indo-China Steam Navigation cases, a non-citizen cannot take the benefit of Article 15. Thus, with respect to non-citizens, a classification which has religious inklings cannot be dismissed at the threshold; it will pass muster if it passes the tests of Article 14 discussed above.

We now address the author’s argument based on the concurring judgement of Justice Malhotra in Navtej Johar v Union of India. The author’s inference from certain portions of Justice Malhotra’s opinion Navtej Johar is misplaced. The quoted paragraph – “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy” – lays out the underlying constitutional intent of Article 15. It does not, and is not meant to address the point of whether such grounds transcend Article 15, and apply as a bar upon classification ipso facto, including for non-citizens under Article 14

The following exposition from the judgment, admittedly, is unequivocal: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. However, what begs an answer, and none is provided in clear terms by any judicial precedent, is whether certain grounds, beyond those in Article 15 and thus applicable to non-citizens, are barred at the threshold as the bases of any classification; if yes, then what are these grounds and do ‘intrinsic and core trait(s) of an individual’ qualify as such grounds?

Essentially, the submission of the author, relying on Justice Malhotra’s opinion, is that any classification with semblance to religion is impermissible, since like Article 15, which applies only for citizens, Article 14 contains an inherent bar upon classification on certain grounds, one of which is the notion of core trait/choice/personal autonomy (and religion is a part of that). This, however, has little basis in existing equality jurisprudence. The tests are clear and any classification can exist so long as the tests of Article 14 are met. Beyond that, no inherent barriers have been created for classification under Article 14.

In any case, the proposition that classification rests solely on religion should be taken with scepticism. In the CAA, religion is qualified by persecution. Therefore the two should be considered together. Religion persecution has also been recognized in the Refugee Convention as a form of persecution. Therefore, it cannot be considered as a capricious standard of marking the lines, given that the exact target groups are sought to be protected as recognized by International Convention. Further, the classification is not to create new benefits, but is only to accelerate an existing process as a measure of protection for recognizable and internationally accepted target group that, due to their precarious situation, need such protection. It is akin to any law which may be framed for instance to protect LGBT individuals from countries which provide for capital punishment for them. In that case, it will be a constitutional disservice to accept an argument that they cannot be allowed a dignified life in India because the law classifies on the basis of sex/sexual orientation.

THE PRINCIPLES CONUNDRUM AND UNDER-INCLUSIVENESS

A classic fallacy with the arguments on under-inclusiveness, also reflected in the author’s piece, is that its proponents enlarge either the principle determining classification, or the object of the law beyond their actual bounds, to argue that the classification is narrower than it ought to be.

It will be shown that the author’s purported principles determining the classification is deliberately broad, and the actual principle is more qualified. Therefore, when the purpose is defined properly, the classification is not under-inclusive.

The author, in her piece, considers four principles and finds them inadequate. For convenience, they are reproduced below –

  1. “Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.”

The classic problem of “inadequate principle” is at issue here. The above four principles, if applied, result in the law leaving out some group who ought to qualify. However, it is quite possible that the alleged principles are not actually the principles on which the classification is based.

In this context, let us begin by noting that laying down adequate determining principle for classification in a law lies at the doorstep of the Parliament.

It is submitted that here, the determining principle is not solely based on Partition, or harm. It is also not only about state religion or secular states, or about religious minorities. Determining principles cannot be laid in water-tight compartments, and it is not necessary that the entirety of one ground has to make a determining principle (for instance “all minorities”, or “all persecuted”). More than one ground can qualify the other grounds if the determining principle is specific (for instance, not all minorities but religious minorities, or not all persecuted but persecuted for being a religious minority).

While one set of determining principles takes in the Partition (Pakistan and Bangladesh), and the unique situation of Afghanistan vis-a-vis India, another possible set of principles is not Partition-related. India sees its responsibility as a regional leader in its neighbourhood with a thriving democracy and secular credentials to protect certain classes of foreigners under threat in their own countries. Among many forms of persecution, for now, India considers itself sufficiently prepared to be able to imbibe as citizens through a relaxed process of naturalization, those persecuted on the basis of religion. The next question is, who all and from where all?

The principle is members of communities (religion) not being the state religion of the respective nation. Essentially, it is a loose combination of Principle 2 and 4 described by the author. In other words, the broad sphere of ‘religious minority’ is qualified by its application only with respect to nations with state religions and on minorities being non-believers of the state religion. This is clearer with the altered text of bill, as being circulated in the media, by which the phrase “…persons belonging to minority communities, namely, Hindu, Sikh…” has been replaced with “persons belonging to Hindu, Sikh…”. [Editor’s Note: this is now the text of the Act.]

Therefore, it can no more be argued that the genus was ‘minority community’, and that only six of them cannot be protected (i.e., under-inclusion). The principle is shortened from ‘minority community’ to a principle which is qualified by two other components – applicable to states with a state religion, and applicable for religions not being the state religion. In other words, the principle is narrower than presented. Hence non-inclusion of some is not because of under-inclusion, but because they are not in conformity with the principle for classification. (such as Ismailis or Shias, being another sect of Islam and not a separate religion than Islam), or Myanmar, not included for not having a state religion.

Pakistan, Afghanistan and Bangladesh have a state religion, i.e., Islam. The Sri Lankan Constitution gives Buddhism the foremost place and the Myanmarese Constitution only recognizes the special position of Buddhism as the faith practiced by majority. In any case, if it is still considered that Sri Lanka has a state religion, courts may also take cognizance of data, if provided by the Union of India, of the alleged dwindling rate of the minority population in Pakistan, Afghanistan (less than 1% presently) and Bangladesh (from 23% at independence to 9% presently) of the communities sought to be protected vis-à-vis Sri Lanka (28 % in 1953 to 20% presently) to gather the mischief that the amendment seeks to arrest.

SUMMARY

The classification under Article 14 does not have inherent barriers of impermissibility at the threshold level, and nor does it have to conform to Article 15 when invoked with respect to non-citizens. In this case, the only test needs to be satisfied is the intelligible differentia-rational nexus-non-arbitrariness test of Article 14. The principle underlying the classification is not merely minority or religious minority, but of belonging to group other than the state religion of Pakistan, Bangladesh and Afghanistan (i.e. states with a constitutionally prescribed state religion). The classification with respect to states with state religions, for the benefit of persons not following the state religion, bears a rational nexus with the object of the amendment in protecting such persons facing threat of persecution for reason of non-conformity with their state religion and being eligible for relaxed criteria of immigration and naturalisation in India, and in furtherance of India’s responsibility as the leader in its nation with strong democratic values and emphasis on dignity of life to support victims of religious persecution in theocratic states. The classification, having semblance to a category of vulnerability recognized in international convention and supported empirically (possibly) is therefore not arbitrary.

The Supreme Court Decriminalises Adultery

Today, in Joseph Shine v Union of India, a Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, and decriminalised adultery. As we have discussed before on this blog, this was not a difficult case. The asymmetric nature of the provision – which punishes only the male participant, and that too only on the instance of the husband, and also not if the husband has “consented” or “connived” with respect to the act – is clearly based upon gendered stereotypes that view women as the property of their husbands, and also, as sexually submissive, liable to be “seduced” by men at any moment. Once that fact is clearly understood, there is precious little that can be said to defend the provision under the Constitution.

The four concurring opinions proceed along expected lines. They hold that the asymmetric character of the provision is indeed grounded upon ideas of gender subordination, is therefore “manifestly arbitrary”, and fails the test of Article 14 of the Constitution (and also puts paid to the State’s argument that the provision is necessary for preserving marriages). This would, of course, leave the door open for the legislature to recriminalise adultery through a gender-neutral provision. The Court, however, closes that door as well, noting that criminalisation of what is essentially a private matter – with no broader societal interest – would be an infringement of privacy. These two findings together mean that adultery is gone from the statute books – and will stay gone.

Equality and Non-Discrimination 

In addition to these – expected – lines of reasoning, there are certain interesting aspects on the issues of equality and discrimination in the concurring opinions of Justices Chandrachud and Malhotra, which carry forward the views that they had expressed last month in Navtej Johar v Union of India (the 377 judgment). Justice Chandrachud, for example, reiterates his argument that Article 14 analysis must go beyond the traditional classification test, and focus on substantive disadvantage:

Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. (para 38)

It is important that this argument is made not in the context of Article 15(1), but Article 14. Framing Article 14 in the language of disadvantage means that the five groups that are not mentioned in Article 15(1) (sex, race, caste, religion, place of birth), but are nonetheless analogous to those groups by also representing sites of structural or institutional disadvantage (such, as for instance, disabled persons), are entitled to a more searching and rigorous scrutiny under Article 14, than the traditional (deferential) rational classification standard.

Chandrachud J. then goes beyond Article 14, and tests the adultery provision on grounds of Article 15(1) (non-discrimination on the basis of sex) as well. Advancing his Navtej Johar framework of analysis – which combined a contextual  approach to understanding the effect of the law on the one hand, with an interpretation of Article 15 that prohibits distinctions based on class stereotypes on the other – Chandrachud J. finds that the adultery provision discriminates on grounds of sex, as it is founded in stereotypes about women’s sexual agency, and gender roles within the family. As part of this analysis, he makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the “private sphere.” This leads him to make the following important observation:

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage  In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. (paragraphs 51 – 52)

And, subsequently:

It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’ …  While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. (paragraphs 62 – 63, 67).

The interrogation of the public/private divide is, of course, a significant part of the longer-term project of transformative constitutionalism; here, however, it has two immediate implications. By holding that the family structure and the institution of marriage are not immune from constitutional scrutiny, Chandrachud J.’s concurrence casts a shadow over two provisions, both of which have been discussed before on this blog: the marital rape exception under the Indian Penal Code, and restitution of conjugal rights (Section 9 of the Hindu Marriage Act). The defence to the first is invariably the “preservation of the institution of marriage”, while the latter was, actually, upheld on the basis that “cold constitutional law” could not be introduced into the warmth of the home. Both these justifications are now invalid: what Chandrachud J.’s opinion clarifies is that the autonomy of a social institution (whether the institution of marriage, or the home) is always subordinate to individual right to autonomy, exercised within that institution. Or, to put it another way, the Constitution exists to democratise private relationships, breakdown inequalities and hierarchies within those relationships, and ensure individual dignity and freedom not simply against the State, but also against social institutions and structures.

Justice Malhotra also carries forward her reasoning in Navtej Johar. On Article 14, she holds that as the historical foundation of the adultery provision was, indisputably, in the premise that women were chattels, the classification that it draws (between who is aggrieved and who isn’t, and who can sue and who can’t) is vitiated by an illegitimate constitutional purpose. Therefore, while the classification may be intelligible, and there may exist a rational nexus with a goal, that goal itself (in this case, the subordination of women) is ruled out by the Constitution:

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. (paragraph 12.2)

This is an important step forward in centering the “illegitimate purpose” prong of the classification test under Article 14.

One last point: when adultery was upheld in 1954, it was upheld on the basis of Article 15(3) of the Constitution, which allows for “special provisions” to be made for women and children. Not punishing women for adultery was held to be a “special provision” for their benefit. All four opinions make it clear, however, that Article 15(3) cannot be pushed into service where the entire rationale of the law is discriminatory against women. Justice Malhotra articulates the point most clearly:

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation.” (para 14)

Treating Article 15(3) as an affirmative action provision (even though the language is broader) is, to my mind, an important step forward in articulating a clear and principles interpretation of this clause. Of course, as the example of President v Hugo shows us, this is not always as easy an enquiry as the adultery case allows. Often, disadvantage and stereotypes are bound up together, because stereotyping is the prelude to disadvantage. When you are trying to remedy disadvantage, then, sometimes you need to take stereotypes as your bases to do so. How the Court negotiates this, of course, is a question for the future.

Two Objections 

Two quibbles. The first is procedural. In 1954, the constitutional validity of the adultery provision was upheld by a five-judge bench. The present bench was bound by that. The Chief Justice and Chandrachud J. are both aware of this, and try to get around it. The Chief Justice argues that that case was on the “narrow point” of Article 15(3), while Chandrachud J. argues that it was on the distinguishable point of the woman not being made an abettor. I am unconvinced. Here is the first line of Yusuf Abdul Aziz:

The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution.

 

15(3) or no 15(3), abettor or no abettor, you can’t get clearer than this. The case was about a constitutional challenge to Section 497, and the constitutional challenge was rejected. Maybe there is a case that Article 21 was not raised, and that therefore, a five-judge bench could rule on that. I do think, however, that if Yusuf Abdul Aziz was to be overruled on the grounds of Article 14 and 15, a seven-judge bench needed to be constituted.

Secondly, at one point in his judgment, Nariman J. notes that Hindus never had the concept of divorce, because marriage was considered a sacrament. This is, with respect, historically inaccurate. It is true that among caste Hindus, divorce was an anathema; divorce, however, was frequent and accepted among lower castes, and this is a fact that has been recorded in multiple works of social and cultural history. It does, however, raise some interesting questions about what exactly do we talk about when we talk about transformative constitutionalism. As Karl Klare noted in the famous article that began it all, transformative constitutionalism is not simply about how you interpret the Constitution, but also about how law is taught and discussed. One important part of that is to focus more closely on the sources (both historical and otherwise) that are relied upon in judgments: for example, it is notable that, in a case of gender equality under the Indian Constitution, the first footnote in the Chief Justice’s opinion refers to John Stuart Mill, a British and white man, who lived in the 19th century. Transformative constitutionalism, I feel, must also deepen the sources that it relies upon – otherwise, we’ll still be decriminalising adultery while also making sweeping statements that are both incorrect and result in historical erasure, about the nature of marriage and divorce “among the Hindus.”

Guest Post: Navtej Johar v Union of India – Key Highlights

(This is a guest post by Dr. Abhinav Chandrachud.)

Much has already been written and said about the recent landmark decision of the Supreme Court in Navtej Singh Johar v. Union of India, where a bench of five judges of the Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC), which made “carnal intercourse against the order of nature” a criminal offence. Four separate judgments were delivered by the court, by Chief Justice Misra (supported by Khanwilkar J), and Justices Nariman, Chandrachud and Malhotra. Though the conclusions arrived at were the same, some of the reasoning was different. For example, Justice Nariman held that there is no presumption of constitutionality for pre-Constitution laws [Nariman J, paragraph 90], Justice Chandrachud rejected [Chandrachud J, paragraph 36] the “sex plus” test laid down in Air India v. Nergesh Mirza, (1981) 4 SCC 335, while the other judges didn’t dwell much on these subjects. This post therefore focuses on some of the key highlights of the reasoning of the majority in the case. All paragraph number references are from the original judgments published on the website of the Supreme Court of India.

What is “natural”?

Section 377 of the IPC bears the heading “unnatural offences” and it penalizes carnal intercourse which is against the order of “nature”. Some of the judges therefore asked themselves what was meant by the word “natural”. Chief Justice Misra and Justice Malhotra held that a person’s sexual orientation itself is natural [Misra CJ, paragraphs 4, 109; Malhotra J, paragraph 13.1]. Relying on scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that there are shortcomings in the conceptual categories of “natural” and “unnatural”, that the idea of the “natural” was manufactured by a majoritarian suppression of the history of the prevalence of sexual minorities, that merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn’t mean that it ought to be criminal [Chandrachud J, paragraphs 28-29].

Constitutional Morality:

One of the central themes of the court’s decision in Johar is that the aim of the Constitution is to transform society, not to entrench and preserve the pre-existing values of the majority. In other words, though a majority of people in India may be heterosexuals, though the prevalent “social morality” in India might even dictate sexual intercourse only between a man and a woman, it is “constitutional morality” which must prevail [See, Misra CJ, paragraphs 110, 119; Nariman J, paragraphs 80-81; Chandrachud J, paragraphs 3, 24, 141]. Ambedkar himself had said that “our people have yet to learn” the “sentiment” of “constitutional morality” [Chandrachud J, paragraph 141].

In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), Justice Jackson of the U.S. Supreme Court famously wrote, “Compulsory unification of opinion achieves only the unanimity of the graveyard.” In passages reminiscent of these words, the Johar court found: “Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” [Misra CJ, paragraph 116]; And: “Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution.” [Chandrachud J, paragraph 5].

The Miniscule Minority:

In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, the Supreme Court had previously upheld Section 377 of the IPC because only “a miniscule fraction of the country’s population”, according to the court, belonged to the LGBTQI community. This argument was rejected by the court in Johar [Misra CJ, paragraphs 115, 120, 169; Nariman J, paragraph 95; Chandrachud J, paragraph 55; Malhotra J, paragraph 19(ii)]. The number of people asserting a fundamental right, said Chief Justice Misra, is “meaningless; like zero on the left side of any number.”

Unreasonable Classification:

Section 377 of the IPC was partially struck down by the court on the ground that it violates the rights to equality, free speech, and life under Articles 14, 19(1)(a) and 21 of the Constitution. Two tests were applied to determine whether the provision fell foul of Article 14 – the old classification test, and the new manifest arbitrariness test.

Under the classification test, a law falls foul of Article 14 if it either classifies people into categories without applying an intelligible differentia, or if the object sought to be achieved by the law doesn’t bear any rational nexus with the intelligible differentia. Applying this test, Chief Justice Misra found that the object of Section 377 (“to protect women and children from being subjected to carnal intercourse”), did not bear a reasonable nexus with the classification of persons into those who have carnal intercourse against the order of nature and those who don’t [Misra CJ, paragraph 237]. Justice Chandrachud, on the other hand, held that it was “difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’” [Chandrachud J, paragraph 29]. Justice Malhotra held that “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” [Malhotra J, paragraph 14.3]

Manifest Arbitrariness:

All the judges found that Section 377 was manifestly arbitrary [Misra CJ, paragraph 239, Nariman J, paragraph 82; Chandrachud J, paragraph 29; Malhotra J, paragraph 14.9]. The following were among the reasons given by the court in support of this conclusion: (i) Section 377 does not distinguish between consensual and non-consensual sexual intercourse among competent adults; (ii) it fails to recognize that such sexual intercourse is not harmful to society; (iii) it inflicts a stigma on members of the LGBTQI community; (iv) modern psychiatric studies have shown that members of the LGBTQI community are not persons suffering from mental disorders; (v) Section 377 inflicts life imprisonment, which is disproportionate; (vi) it is rooted in the belief that the sole aim of sexual intercourse is procreation; (vi) it discriminates on the basis of sexual orientation, over which a person has “little or no choice”; (vii) the phrase “carnal intercourse against the order of nature” is too open ended and vague to be in a penal provision; (viii) after the 2013 amendment to the IPC, some consensual sexual acts between heterosexual adults would no longer be considered rape under Section 375, though they would still fall foul of Section 377 [Misra CJ, paragraph 220; Nariman J, paragraph 94; Chandrachud J, paragraph 31 (at pp. 39-41)].

Articles 19(1)(a) and 21:

The court found that Section 377 violates the right of members of the LGBTQI community to dignity, identity, and privacy, all covered under Article 21 of the Constitution [Misra CJ, paragraphs 143, 229; Nariman J, paragraph 83; Chandrachud J, paragraphs 51 (at p. 66), 58; Malhotra J, paragraphs 13.1, 14.5, 16]. Two judges found that it violates the right to health, because the criminalization of homosexual intercourse makes members of the LGBTQI community hesitate to seek medical advice and that they are therefore more susceptible to sexually transmitted diseases [Chandrachud J, paragraphs 76, 83, 84, 87, 92; Malhotra J, paragraph 16.3]. The court also found that Section 377 violates the right to the freedom of expression under Article 19(1)(a) [Misra CJ, paragraphs 245, 247; Malhotra J, paragraph 17].

Partially Struck Down:

However, Section 377 of the IPC has not entirely been struck down. It still covers bestiality and non-consensual intercourse [See: Misra CJ, paragraphs 252, 253 (xvii), Nariman J, paragraph 97; Chandrachud J, paragraphs 7, 156(i)]. Since the court struck down the provision as far as it applies to consenting adults, the provision still presumably applies to consensual sexual intercourse among minors of the same gender. Under Section 375 of the IPC, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if the girl is under 18 years of age, is considered to be rape.

(The writer is an advocate at the Bombay High Court)

“Something of freedom is yet to come”: The significance of the Delhi High Court’s decriminalisation of beggary

Yesterday, Abhinav Sekhri provided an excellent overview of the Delhi High Court’s landmark judgment striking down (most provisions of) the Anti-Beggary Act (Harsh Mander v Union of India). As Sekhri pointed out, the provisions of the Anti-Beggary Act (first enacted by the state of Bombay in 1958, and then extended to twenty states and two union territories) effectively criminalised status through an extraordinarily broad definition of “begging.” They also established a system of “Certified Institutions” that were little better than detention centres.

Sekhri correctly observes that the High Court’s judgment was facilitated by only token opposition from the Delhi government. Perhaps unfortunately, this also appears to have limited its scope. The decision is, ultimately, based on narrow grounds. But perhaps more troublingly, it is also based upon a distinction between “voluntary” and “involuntary” begging that obscures the vicious, colonial logic that underlay the entire family of laws that the Anti-Beggary Act was a late, post-colonial entrant into (such as the Criminal Tribes Act, and various vagrancy statutes). Nonetheless, that does not take away from how important this judgment is. It is, in its own way, as transformative as the first Naz Foundation judgment of the Delhi High Court, and I share Sekhri’s guarded optimism that it can be the starting point for a long-overdue reckoning with some of the worst and most enduring legacies of colonialism in our criminal legal system.

Article 14

The first ground employed by the Court for striking down the law was Article 14. Interestingly, this was based on a concession by the Government. The Government took the stand that the Act did not intent to criminalise involuntary begging (i.e., begging attributable to factors such as poverty). If that was the legislative purpose, however, then the provisions of the Act were irredeemably broad. The five-pronged definition of “begging”, for example, read as follows:

(i) “begging” means—

(a) soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale

(b) entering on any private premises for the purpose of soliciting or receiving alms ;

(c) exposing or exhibiting, with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease whether of a human being or animal ;

(d) having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms ;

(e) allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms.

As the High Court correctly noted, the definitional clause made no distinction between “voluntary” and “involuntary” begging, and also brought in homelessness within its ambit (paragraphs 16 – 18). And it is well-settled that an unconstitutional statute cannot be rescued through a promise on the part of the State to implement it fairly. The law, therefore, clearly violated Article 14, and was accordingly struck down by the High Court on grounds of arbitrariness.

I am, however, slightly bemused about why the High Court chose to adopt the more contentious and unsettled “arbitrariness” test under Article 14, in a case where the traditional classification test was so clearly applicable. The over-inclusiveness of the definitional section in a case where the Government had itself conceded the legislative purpose was so patent, that even under the deferential rational review standard, the Act could not have stood.

Article 19(1)(a) 

Sekhri argues that the Court did not go into issues of Article 19(1)(a). That conclusion, however, might be a little too hasty. While there is no fleshed-out Article 19(1)(a) analysis, the Court did not – in paragraph 31 – that “criminalising them [i.e., persons accused of begging]denies them the basic fundamental right to communicate and seek to deal with their plight.” While this does not go as far as stating that criminalising begging is per se contrary to Article 19(1)(a) because it interferes with an expressive activity without justification, it does at least recognise the Article 19(1)(a) interests involved.

Article 21

The Court then found that the summary detention provisions of the Act violated Article 21’s due process guarantee. The Union of India argued that detaining individuals was necessary in order to find out whether they were begging voluntarily or involuntarily. This, as the Court correctly noted, entailed that the police “would be arresting persons who may be subsequently found to have not been begging, thereby, depriving such persons of their liberty without following any process of law.” (paragraph 20)

Furthermore, the Act – as a whole – contravened the more substantive guarantees under Article 21 as well. Criminalising begging – as the Court noted – effectively made individuals liable for the State’s failure to provide the basics of a dignified life (food, shelter, clothing, education) as envisioned by Article 21 (paragraphs 28 – 29). The Court observed:

A move to criminalize [persons accused of begging] will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges, and isolation.

The Court concluded by noting that if the State wanted to bring in a law to penalise forced begging, it could do so after conducting appropriate empirical studies.

While the basis of the Court’s judgment was a distinction between compelled and voluntary begging (note that this was because the State itself had conceded that it was only concerned with criminalising “voluntary begging”), this final observation suggests that, ultimately, what the State can legitimately criminalise is a situation where individuals are coerced or forced into begging through organised or unorganised “rackets.” Sekhri correctly worries that the judgment does not go into the question of the limits of the State’s power to criminalise status; however, the concluding observations suggest, at the very least, that the conversation is heading in that direction.

The Unsaid 

This brings us to the silences in the judgment. The most glaring silence relates to the definitional section. Recall that S. 2(1)(a) defines begging as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performing or offering any article for sale.” S. 2(1)(e) defines it to include “having no visible means of subsistance and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.”

At one level, of course, these sub-clauses reveal the classist character of the legislation. The law envisions public places as exclusionary, closed off to those who look poor. It is a sanitised vision of the public sphere, built upon keeping out the undesirables, those who “are not like us.” Indeed, it is the legislative equivalent of shops putting up spikes outside their doors and windows to prevent rough sleeping.

There is, however, a deeper logic running through these provisions, which is specifically visible in the underlined parts. Notice that the definition of “begging” is (consciously made) so broad, that it covers not just an activity (say, “soliciting for alms”), but entire ways of life. What unites these ways of life (singing, dancing, fortune-telling, performing) is their itinerant character. 2(1)(e) makes it clear when it uses the bizarre phrase “wandering about.” This gets to the heart of the phobia driving these laws: the fear of shifting populations whose changing movements and patterns makes them “invisible” to the administrator, and therefore, harder to classify, categorise, control, and (yes) extract tax from.

The “taming” of such individuals, groups, and communities was central to the colonial project, both in India and elsewhere. By associating them with hereditary criminality, the British stigmatised and (virtually) enslaved entire nomadic communities by bringing them within the ambit of the vicious Criminal Tribes Act. The myth of “thuggee” (a word still found in the IPC) was employed to the same end. Through vagrancy laws, the British made it impossible for itinerant lifestyles to remain outside the net of punitive legislation. All of this was driven by the imperative to ensure a “settled” population that could be disciplined and taxed with ease.

It is trite to say that post-colonial legal logic has, more often than not, replicated this model. The laws of the colonial regime have been turned by post-colonial administrators upon their own people. The Criminal Tribes Act was repealed in the 1950s, but (as we have seen) other laws live on: from the Habitual Offenders Act to vagrancy statutes to the Anti-Beggary law to various sections of the IPC. It is this that makes the Delhi High Court judgment so important. Even though these issues are not addressed in the judgment itself (and for good reason, because the State itself abandoned that justification), the striking down of the Anti-Beggary Act is a powerful blow against the enduring shadow of colonialism in our legal regimes. It is now for other courts to take the logic forward.

During oral arguments in the recent Section 377 hearings, Justice Chandrachud made the observation that the Constitution is committed to the value of pluralism: that is, an affirmation that every individual has the right to self-determination when it comes to choosing ways of life, modes of faith and belief, and self-expression. I intend to address this point in a later post, but for now, I want to note that Chandrachud J.’s observation is perhaps more accurately understood as an aspiration for the future rather than an accurate account of our constitutional history. The colonial project was characterised by a homogenising drive that delegitimised plural forms of life, and established hierarchies between them. Our Constitutional era has not entirely transformed this reality. You see signs of it in the text of the Constitution itself, which assimilates Buddhists, Sikhs and Jains within the legal category of Hindus. You see further signs of it in the jurisprudence of the Supreme Court, which has repeatedly denied to dissenting traditions the status of independent religious. And of course, you see it in the web of criminal legislation (whether Section 377 or the anti-beggary laws) that is premised on stigmatising alternate ways of living.

The importance of the Delhi High Court’s judgment lies in how it can force us to reckon with this legacy, which is so deeply intertwined with our legal and constitutional system.

Conclusion

In conclusion, I think it’s important to note that the Delhi High Court elected not to go down the route of far too many constitutional challenges: uphold a clearly unconstitutional law, but issue unenforceable “guidelines” to soften the blow. The rise of PIL and the “good governance” Court has tended to make the judiciary often forget that its primary task is testing legislation for constitutional validity, and striking it down if it fails the test. In its administrative avatar, the Court has too often begun to act like administrators, focusing more on issues of implementation rather than constitutionality. Indeed, when the anti-Beggary Act was itself challenged before the Bombay High Court in 1993, the High Court established a “Committee” to look into the matter! Despite the Committee’s clear recommendation that the Act had to go, nothing happened. This is, of course, symptomatic of a wider issue, and it is truly refreshing to see that the Delhi High Court avoided falling into this trap.

A final observation. A couple of years ago, while inspecting a file in Patiala House, I came across a chargesheet that, while listing an individual’s particulars, listed “Residence: Vagabond.” The incongruity stuck in my mind, a reminder that the law is linguistically incapable of dealing with the range of issues in society, let alone addressing them in any meaningful way. Apart from all else, the High Court’s judgment is also an acknowledgment that you cannot “solve” poverty through arrests, detention centres, and courtrooms. It is a rare example of humility in a legal system that, too often, seems to lay claim to omnipotence.

Guest Post: Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are

(This is a guest post by Tarunabh Khaitan, who is an Associate Professor of Law at the Universities of Oxford and Melbourne.)

The guarantee of non-discrimination under Article 15 of the Constitution is not an essential weapon to fight the criminalisation of victimless consensual sexual acts between adults under section 377 of the Indian Penal Code. The ridiculousness of such criminalisation is so patent that even a deferential quest for reasonableness under Article 14 of the Constitution will find the criminal provision wanting. Nor is the provision likely to pass muster with the guarantee of personal liberty and privacy under Article 21. Indeed, there is even a view that no constitutional provision needs to be invoked—that s. 377 can be defanged through a mere statutory reinterpretation in light of changes social facts.

Judicial minimalism (and, the related notion of constitutional avoidance)—the idea that if a case can be decided on narrower grounds, courts should avoid bringing the big guns out—is usually wise counsel. The case before the Supreme Court, however, is unusual. This is an instance where the Court has a constitutional obligation to unrelentingly apply the full moral force of the antidiscrimination principle embedded in Article 15 against s 377, in addition to the arguments mentioned above. There are at least two reasons why judicial minimalism will be unwarranted in this case.

The first reason is institutional. The Court needs to atone for its own institutional sin in recriminalising homosexual conduct by overruling the constitutionally sound judgment of the Delhi High Court. This is an opportunity for the Court to apologise to the Constitution, for its abject failure to defend its values. The Court also owes an apology to millions of innocent Indians who it rebranded as criminals in 2013. It much acknowledge, loudly and clearly, the violence its judgment visited on so many lives. It needs to recognise that it acted as an organ of a colonial state when it criminalised people based simply on who the were, and mocked their quest for justice as a claim for ‘so-called rights’. The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.

The second reason for an expansive reasoning is provided by the current political context. In most cases, the primary judicial objective is to reach a just outcome under law. But some cases come to acquire an expressive significance far beyond the remedy the court orders. The litigation over s 377 has shaped our political discourse over the last two decades in ways that would have been unimaginable for activists who first challenged the provision at the start of the century. Within fifteen years, the country moved from not talking publicly about homosexuality to a general election where major political parties promised decriminalisation in their election manifestos. What the Court says in this judgment is going to matter as much as what it does through its order.

But the expressive salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy today is at a crossroads. Its constitutional commitment to an inclusive, composite, secular ethos has never been challenged more seriously than it is today. At a time when sectarianism and majoritarian nationalism are seeking to exclude all sorts of minorities from public life and equal citizenship, the Court has a duty to emphasise the inclusive and pluralist rather than majoritarian character of our democracy. Inclusiveness and pluralism lie at the heart of Article 15, which can be the surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.

A robust development of the Article 15 jurisprudence, along the path showed by the Delhi High Court in 2008, is more urgent than ever. The Court owes a promise to Rohith Vemula that the judiciary would rigorously examine exclusionary and discriminatory practices. It has a duty to all those who have been lynched, harassed or persecuted for being different that Article 15’s promise of defending their personal autonomy and dignity is not empty rhetoric. It is true that the Court alone cannot deal with rampant discrimination. But its strong endorsement of the antidiscrimination principle could provide a boost for political efforts to enact a comprehensive antidiscrimination law, at least in some states to begin with.

It is true that judicial minimalism and constitutional avoidance are not typical features of the jurisprudence of the Indian Supreme Court. The Court has often been jurisprudentially expansive, while being remedially minimalist. But, in politically sensitive cases, it has found judicial minimalism to be strategically useful (its judgment in the triple talaq case, eschewing all mention of Article 15, is a case in point). Such strategic minimalism can often be important for preserving a court’s legitimacy. In the 377 case, however, it is not just judicial legitimacy that is at stake, but the very nature of our constitutional identity.

In his excellent book on constitutional identity, Gary Jacobsohn identifies the phenomenon of disharmony in constitutional identity (p 87): “Sometimes [disharmony] exists in the form of contradictions and imbalances internal to the constitution itself, and sometimes in the lack of agreement evident in the sharp continuities that frame the constitution’s relationship to the surrounding society.” An inclusive pluralism has, largely, been the dominant narrative in India’s constitutional identity. But seeds of disharmony have always existed—internally, in the form of the cow slaughter directive of the Constitution, and externally in the deeply inegalitarian and sectarian social structure the Constitution has tried to transform. As Jacobsohn argues, constitutional disharmony carries within it the seeds of constitutional change.

Make no mistake: the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.

Round-Up: The Delhi High Court’s Experiments with the Constitution

(This is the second part of three blog posts that round-up some recent judicial pronouncements. For work-related reasons, I did not have the time to write about them when they were delivered. – Ed.)

Benches of the Delhi High Court have issued a series of interesting rulings in the first half of 2018. A summary follows.

Article 14 and Genetic Discrimination

In United India Insurance Company v Jai Parkash Tayal, a single-judge bench of the Delhi High Court invalidated a clause of an insurance contract that excluded “genetic disorders” from the scope of insurance. The judgment proceeded on multiple grounds, and makes for fascinating reading. In particular, Justice Pratibha Singh invalidated the clause on the grounds of Article 14 (equality before law), 21 (right to health), and the impermissibility of changing an insurance contract to the detriment of the insured. The Article 21 issue is not one I will discuss here: as readers of this blog will know, the reading in of broad socio-economic rights into Article 21, and their exceedingly uneven application on a case-to-case basis, is not something I am very comfortable with. This case, like so many others, tells us that there is a right to health, and then uses it to achieve a specific outcome, but somewhere along the way, the precise spelling out of the scope, contours and limits of this right, and the nature of the obligations it places upon the State, is lost by the wayside.

What I find much more interesting, however, is the manner in which the Court used Article 14. In paragraph D1, Justice Singh observed:

Article 14 of the Constitution of India prohibits discrimination of any kind. This would include discrimination based on genetic heritage of an individual.

There is, however, something odd about this framing. Article 14 is the equality clause. The non-discrimination clause is Article 15(1), which prohibits the State from discriminating on grounds of race, religion, caste, sex, and place of origin. Moreover, Article 15(1) is a closed list – unlike certain other Constitutions, no additional, analogous grounds can be brought within its ambit. Article 14, on the other hand, is a general equality clause that has been interpreted by the Courts to exclude irrational classification or arbitrary State action, on a case-to-case basis. Unlike Article 15(1), Article 14 does not – a priori – rule out specific grounds upon which differentiation may be based. The distinction between Articles 14 and 15(1) was expressed by Patanjali Sastri CJ in a classic exposition, in Kathi Raning Rawat v The State of Saurashtra (1952)

As we can see, Justice Singh’s observation that Article 14 prohibits discrimination on the basis of genetic heritage appears to conflate Sastri CJI’s distinction between Articles 14 and 15(1).

In the latter part of the judgment, however, Justice Singh modulates the claim. In the context of insurance contracts, she concedes that there may be a class of narrowly defined cases (to be articulated by the policy-makers) where certain kinds of genetic diseases can be excluded by the insurer. Her specific problem is with the width of this exclusion clause (covering all “genetic disorders”) which – as she states in the operative part of the judgment – violates Article 14. Consequently, Justice Singh’s argument is not that “discrimination” on the basis of genetic characteristics will automatically violate Article 14, but rather, it will presumptively violate Article 14, unless strong reasons can be shown that justify the violation. In other words, differentiation based on genetic differences will be subjected to stricter judicial scrutiny than other classifications.

Is there any constitutional warrant for this reading of Articles 14 and 15? I have recently argued that there is, in a defence of the Delhi High Court’s Naz Foundation judgment (SSRN version here). Briefly, the argument is as follows: an analysis of the Constituent Assembly Debates shows that the framers did not intent Articles 14 and 15 to operate as separate silos. Rather, Article 14 was the general expression of the concrete commitment towards non-discrimination under Article 15(1). The framers took the five most publicly salient grounds at the time – race, religion, caste, sex, place of origin – and prohibited all discrimination involving those grounds. However, the framers also realised that forms and sites of discrimination evolve, and what is not salient today can become salient tomorrow (classic examples: sexual orientation, disability, and age, which are all present in some more recent Constitutional documents). For this reason, the framers included Article 14, whose more open-ended language would allow future Courts to develop new grounds of discrimination, and subject them to stricter scrutiny (something akin to a proportionality standard). Unfortunately, however, this possibility has never seriously been explored by the Courts, who have been caught between the classification and the arbitrariness standards under Article 14. Naz Foundation represented the first serious articulation of this vision of Articles 14 and 15(1). United India Insurance Company is another small, incremental step towards it.

Uncertainties over Horizontality

The Delhi High Court was very clear that Articles 14 and 21 applied to all insurance contracts, whether entered into by a State insurer or a private insurance company. This, however, is a problematic conclusion. Articles 14 and 21 very categorically apply to State action. “State”, under Article 12, is limited to government and entities under the “functional, financial, and administrative” control of government. Without some additional reasoning, a private insurance company cannot be brought within the ambit of the fundamental rights chapter.

The Court’s response was to argue that insurance contracts are unequal (like contracts of adhesion, although the Court did not use the term), and place the insurance applicant at a disadvantage. That is correct – and many jurisdictions recognise that such contracts are of a special kind, that cannot be interpreted in a normal way (see the recent decision of the UK Employment Tribunal involving Uber’s contracts with its drivers). However, the remedies for that are provided within contract law: interpret ambiguous terms in favour of the weaker party, and if the unconscionability is clear, void the contract on grounds of public policy. The Court could even have said – as it came close to doing – that such contracts had a public element, and therefore could be subjected to public law norms (which include norms of non-discrimination). There is no warrant, however, for making Part III of the Constitution directly applicable to private insurance contracts, and to the extent the Court did so, I submit that it erred.

The same issue arose in another Delhi High Court decision that made the news recently, Sanghamitra Acharya v State (NCT) of DelhiSanghamitra Acharya involved the commitment of an adult woman into a mental hospital at the instance of her parents. Justice Muralidhar, writing for the division bench, held that the woman’s rights to liberty, autonomy and dignity had been violated (especially in view of the Puttaswamy judgment), that the parents, police, and the hospital were in breach of their legal obligations, and ordered compensation. This is, of course, impeccable; in the course of the judgment, however, the Court expressly held that Articles 19 and 21 (along with Articles 15(2), 17, and 23) were horizontally applicable between private parties.

It is true that Articles 19 and 21 are not categorically framed as injunctions against the State. Article 19 stipulates that “All citizens shall have the right… to freedom of speech and expression…” and Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Therefore, there is no express textual bar against reading Articles 19 and 21 horizontally. However, the reference to State restrictions under Articles 19(2) to 19(6), and the specific reference to “procedure established by law” under Article 21, strongly indicates that these Articles are meant to apply vertically, between State and individual. This is buttressed by the fact that where the framers did intend the horizontal application of fundamental rights, they were clear and unambiguous about it (Articles 15(2), 17, 23, 24). And lastly, this is how the Courts have almost uniformly understood and interpreted them (there are some exceptions, such as the Aruna Shanbaug judgment). It is, of course, open to the Delhi High Court to hold that this jurisprudence is misguided; however, such a radical change in the interpretation of Articles 19 and 21, it needed to provide strong reasons for that holding, and also to elaborate its own theory justifying the horizontal reading of Articles 19 and 21. With respect, the Court did not do that.

Legal Interpretation in the Shadow of the Constitution

What the Court did do very well, in my opinion, was bring the Constitution to bear upon the interpretation of the Mental Health Act, which was the relevant legislation at issue. The Court was examining whether the “involuntary admission” into a mental hospital was consistent with the scheme of the Act. Under Section 19, a person could be involuntarily admitted into a mental hospital by their relative or friend, if the medical officer in-charge was “satisfied” that it was in the interests of the patient. The Court held that although Section 19 was a “stand-alone” provision, the rights under Article 21 required that the word “satisfaction” be read as “objective satisfaction”; that is, the medical officer would have to follow the legal definition of “unsoundness of mind” (which is narrow and circumscribed) before allowing involuntary admission. On facts, it was found that the medical professional had not even attempted to apply any objective standards in his determination.

The form of interpretation that the Court engaged in here is one that Indian Courts have attempted in the past, but only sporadically: borrowed from German law, it is called “the radiating effect” put broadly, holds that a Constitution is not merely a set of rights, but an objective “order of values”, and these values “radiate” through the legal system. In concrete terms, a Court is to interpret laws – including private law – in a manner that advances and promotes the constitutional order of values. By interpreting “satisfaction” (an ambiguous word) to refer to “objective satisfaction”, and to justify that reading by specifically pegging it to constitutional rights, the Sanghamitra Acharya is an important judgment in the context of the theory of the radiating effect.

Traces of this are visible in two other judgments the Delhi High Court delivered, on the subject of labour law. In Indu Munshi v Union of India, a division bench of the Delhi High Court ordered the regularisation of a batch of Kashmiri Pandit schoolteachers. The schoolteachers had been forced to flee from the Valley in 1993, and had come to Delhi. They had been given contractual jobs as schoolteachers in 1994 – and then kept on contract for the next twenty-four years. The issue of regularisation is a fraught one, and any Court that wishes to order regularisation has to content with the challenge of the Supreme Court’s Constitution Bench judgment in Uma Devi’s Case, which invoked the constitutional right to equality of opportunity to hold that contractual employees who had been appointed by the “back door” could not later be regularised “at the cost of” other employees. Uma Devi’s ratio has, however, been subsequently whittled down (the High Court discussed some of these judgments), and here Justice Bhat, writing on behalf of a Division Bench, held that, on facts, there was no “back door appointment.” One of the crucial features that weighed with Justice Bhat was the fact that the Kashmiri Pandits had arrived as refugees, and were compelled to accept whatever offer of employment was open to them, without any genuine choice or bargaining power. When combined with the fact that the process of appointments was competitive, and that the teachers had worked against regular (unfilled) vacancies for twenty-two years, as well as a number of other technical factors, Justice Bhat held that, notwithstanding Uma Devi, the case for regularisation was unanswerable. The Court also held that the contractual teachers deserved remuneration that was equal to the sanctioned remuneration for regular schoolteachers. It adopted a broad version of the “equal pay for equal work” doctrine (which focused on the nature of work) rather than a narrow version (which made technical factors such as cadres and sources of appointment – which could easily be undermined – determinative), and again, framed the issue as a right against exploitation:

Turning to the issue of equal salary and remuneration, the Govt of NCT of Delhi had argued that the teachers could not question their emoluments, because they had accepted their contractual status and functioned in that capacity for over a decade and a half. The teachers’ argument is that they had practically no choice; the alternative to accepting the job with reduced emoluments was starvation or no employment. Such a Hobson’s choice is not meaningful. This court agrees with the contention and holds that there cannot be any estoppel in such situations, barring claims to parity. Long ago, in Sanjit Roy v State of Rajasthan, AIR 1983 SC 328, the Supreme Court characterized as forced labour the acceptance, under compulsion of circumstances, by a person without employment, remuneration that was lower than the minimum wage and stated “that it may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive.”

And:

In the facts of the present cases too, the court is of the opinion that the mere nomenclature of “contract teachers” is an artificial one given to the teachers who approached this court through the writ petitions that have led to these appeals; they were appointed against regular vacancies, their services are unbroken and have not been continued on account of any stay or court directed interim order; their appointments were pursuant to a constitutionally recognized and acceptable procedure of advertisement and calling names from employment exchange; they each held and hold the requisite qualifications, including B.Ed; all of them were interviewed before their appointment. For these reasons, having regard to their unbroken employment for over two decades, in line with the decision in Umadevi (supra) as understood in Pratap Kishore Panda (supra), Malati Dass (supra) and Sheo Narain Nagar (supra), the said Kashmiri migrant teachers are entitled to be treated as regular appointees. They shall also be entitled to provident fund benefit, gratuity and pension upon attaining the age of superannuation. If any of the petitioners or any other Kashmiri migrant teacher has already attained superannuation or has died in the interregnum the Govt of NCT of Delhi shall calculate their entitlement and release them to such retired employees, and in the case of death, release such amounts to the legal representatives of such deceased employees.

Of course, the Constitution was not directly involved in this case, in the sense that there was no legal provision under challenge. However, it is obvious that the Constitution – and especially, its egalitarian and anti-exploitative ethos – permeated each of the choices the judges had to make. Uma Devi had invoked the doctrine of equality of opportunity to set up “regular” and “back door” appointees in conflict with each other, competing for the same scarce public good (jobs). The Delhi High Court rejected this race-to-the-bottom vision of equality and, instead, focused upon an understanding of equality that was sensitive to exploitation and disparities in bargaining power, to hold that Uma Devi was inapplicable to the present case, and furthermore, the the constitutional principle of equal pay for equal work would also apply.

The Constitution was more directly at play in M/s Metrro Waste Handling v Delhi Jal Board, a brief judgment concerning manual scavenging, and bookending its holding by quotes from Dr. B.R. Ambedkar. The Delhi Jal Board issued a tender for mechanised sewer cleaning, where it did two things: first, it stipulated that only one machine would be issued per bidder; and second, it stipulated that preference would be given to the families of deceased manual scavengers and ex-manual scavengers. The first condition – it argued – was to encourage small entrepreneurs and the underprivileged class to apply. The justification for the second is obvious. The Petitioner challenged the first condition as being arbitrary, and the second as imposing a “100 percent reservation”, which was unconstitutional.

The Court rejected both arguments. On the first, it found that the DJB had set up an elaborate system of loans and other forms of aid to genuinely enable underprivileged sections to effectively bid for the tender; the argument from arbitrariness, therefore, was dismissed. From a constitutional point of view, however, the second issue is more interesting. The Court rejected the argument that the DJB’s order of preference was establishing 100 percent reservation. This was not – it observed – a system of “quotas”:

What is in issue, however, in this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term. The court recollects what was held in Government of Andhra Pradesh v Vijaykumar1995 (4) SCC 520 that the wording of Art. 15(3) enables “special provisions” is wider than Article 16(4) which enables a special provision by way of reservations. Article 15(3) is wider and includes “positive action programmes in addition to reservations”.

However, if what was involved was not reservation, then the provisions of Articles 16(4) (since it specifically mentions reservation). Nor could 15(3)’s “special provisions” be invoked, since they are limited to women and children. The only alternative, therefore – as the Court noted – was that preferential treatment of underprivileged classes was itself consistent with the guarantee of equality of opportunity under Article 16(1). Or, in other words – as the concurring opinions of Justices Mathew and Krishna Iyer had famously held in NM Thomas, but which were not subsequently developed in detail – the constitutional vision of equality is a substantive vision, which factors in structural and systemic discrimination, and views the overcoming of structural barriers as part of the very meaning of equality. As Justice Bhat – again, writing for a division bench – held:

Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT.

Indirect Discrimination

This provides an ideal segue into the last case: Madhu v Northern RailwayMadhu involved the interpretation of certain Indian Railways rules. The dispute centred around a railway employee taking his wife and daughter “off” his list of “dependents” entitled to free medical treatment, on the ground that he had “disowned” them. The Railways argued that for a person’s dependents to avail of treatment, he had to make a “declaration” that they were part of his family; in this case, since the employee had refused to do so, the Railways was justified in denying them medical treatment. The Division Bench, speaking through Justice Bhat – yet again! – rejected this argument, arguing that not only was such an interpretation textually untenable, but also that accepting it would perpetuate indirect discrimination:

The Northern Railways contends that the Appellants are not denied the medical card because they are women, but rather because their husband and father had not made the requisite declaration. However, this explanation is not enough. It is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the Appellants because they were women. Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.

The reason that the drafters of the Constitution included Article 15 and 16 was because women (inter alia) have been subjected to historic discrimination that makes a classification which disproportionately affects them as a class constitutionally untenable. The Northern Railways decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/servant, the dependents are subject to the whims and fancies of such employee. The large majority of dependents are likely to be women and children, and by insisting that the railway officer/servant makes a declaration, the Railway authorities place these women and children at risk of being denied medical services.

It is irrelevant that the Railways did not deny them the medical card because the Appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways. The ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents.

The concept of indirect discrimination – discussed in some detail on this blog previously – has been incorporated into the jurisprudence of many other constitutional courts (the High Court cited some of them). Indian Courts have taken tentative steps towards it, but Madhu represents perhaps the first full-blooded articulation and defence of indirect discrimination as a form of discrimination prohibited by the Constitution. It will, hopefully, be the first of many instances.